Is Legal Philosophy Normative?

Abstract

H. L. A. Hart characterized his theory about the nature of law as “descriptive and morally neutral.” Like previous legal positivists such as John Austin and Hans Kelsen, he thought that a philosophical account of the nature of law should strive to avoid moralizing of any kind, and should aim at an explanation of the nature of law that is quite general in its application—one that explains what law, in general, is. However, many contemporary legal philosophers claim that a theory about the nature of law, such as Hart's legal positivism, cannot be detached from moral and political views about law's merits. This chapter argues that Hart was quite right, and that it is both possible and theoretically desirable to detach a philosophical account of the nature of law from moral and political views about law's merit.